The Times Looks at the Supreme Court

The U.S. Supreme Court has thrown out a very important antitrust class action that subscribers had brought against Comcast, the nation’s largest cable company. This most significant development went virtually unnoticed by court-watchers including many in the media. At the time of the high court’s ruling, news coverage was dominated by accounts of the arguments before the court on same-sex marriage. That subject taking center stage should come as no surprise. As the New York Times pointed out, “the Supreme Court’s business decisions are almost always overshadowed by cases on controversial social issues.”

Many court-watchers believe the Supreme Court’s business docket reflects a definite pro-business leaning. The current court’s decisions, overall, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court. But the court’s rulings in business cases are quite another matter. A new study finds that the current court has been far friendlier to business than any court since at least World War II. In the eight years since Chief Justice John Roberts joined the court:

• the court has allowed corporations to spend freely in elections in the Citizens United case;

• has shielded them from class actions and human rights suits; and

• has made arbitration the favored way to resolve many disputes.

Business groups say the court’s decisions under Chief Justice Roberts have helped combat frivolous lawsuits. Of course, the tort-reform groups label most every type case as frivolous. But consumer groups contend the court’s rulings have destroyed legitimate claims for harm caused by faulty products or resulting from discriminatory practices and even the result of outright fraud. I can say, without reservation, that the court has made it much more difficult to pursue legitimate tort claims of most every description.

The new study takes a careful and comprehensive look at some 2,000 decisions from 1946 to 2011. Published in April in The Minnesota Law Review, the study ranked the 36 justices who served on the court during those 65 years by the proportion of their pro-business votes. All five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito, Jr. Both were appointed by President George W. Bush.

The study was prepared by Lee Epstein, who teaches law and political science at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago. The article in the New York Times on the study that appeared last month was very good.